Justice Oliver Wendell Holmes is often said to have been the greatest American judge. He was conservative in the older sense of the term, faithful to precedent and history, but he welcomed adaptations of the law to new realities. His thought and character stand as a rebuke to today's activists of the Right. Some reflections on the Constitution, originalism and the Supreme Court.

Monday, April 21, 2014

Boadcasting Lies

The Supreme Court's decision in the McCutcheon case decided the other day tacitly rejected Justice Holmes's widely celebrated opinion in Abrams v. United States, in which he said that the American constitutional experiment was based on a free exchange of opinion--a "marketplace of ideas"--in which political truths could be tested and proven through peaceful debate. Election campaigns are marketplaces of this kind--not bazaars where goods are offered for sale, but the village commons and city street corners where people may proclaim their views.

Tomorrow the Court will hear arguments in Susan B. Anthony List v. Driehaus, challenging an Ohio law that criminalizes knowingly false campaign statements. This will test the other side of Holmes's doctrine, often reaffirmed by the Court in the past, that false, malicious and harmful statements about public figures can be punished, the First Amendment notwithstanding (New York Times v. Sulivan, 1964). As Holmes once put it, no one is entitled to falsely shout 'fire' in a theater causing a panic (Schenck v. United States, 1919). Precedents notwithstanding, however, prospects for the Ohio law are not good, given the new majority's willingness to strike down any regulations that can be characterized as restraints on speech or the press.

A majority led by Chief Justice Roberts evidently is adopting a broad new doctrine, largely severed from precedent (except their own opinions). We might echo Holmes and question the "inarticulate major premise" on which their doctrine is based. Holmes's memorable phrase appears in his dissent in Lochner v. New York, in which he complained that the Court's majority opinion in favor of "liberty of contract" was based on an unexpressed economic theory. Scholars have noted that in the Roberts Court "freedom of expression" is the new "liberty of contract," a doctrine that can be used to strike down pretty much any governmental regulation. The power of wealth to drown rational discourse with lies can hardly be denied; there is no precedent for extending the First Amendment to protect megaphones blaring falsehoods. Unless, perhaps, we believe that the American constitutional experiment is not based on peaceful discourse at all, but on the clash of interest groups. Perhaps the experiment that Holmes thought was in progress had already failed.